High court says employers can watch staff take urine drug tests

COLUMBUS— Workers cannot sue their employer for invasion of privacy when they provide urine samples for drug testing under the “directobservationmethod,” the Ohio Supreme Court ruled in a split decision Wednesday.

The court’s 4-3 decision reversed an Ohio Fifth District Court of Appeals decision. The appellate court had determined the two former and two current Sterilite of Ohio employees had a valid claim for invasion of privacy based on them being observed urinating or attempting to urinate to produce samples, whichwas part of Sterilite’s mandatory substance-abuse testing procedures.

The company hired U.S. Health works Medical Group of Ohio to administer the workplace drug testing program. In October 2016, U.S. Healthworks began collecting urine samples under the direct-observation method, in which a same-sex monitor would accompany the Sterilite employee to the restroomto visually observe the employee produce a urine sample.

The majority of the court thought that under the circumstances, the drug testing didn’t constitute an invasion of privacy.

Once the employees proceeded with the observation drug test without objecting, they consented by producing or attempting to produce the urine, Justice Sharon Kennedy wrote for the majority opinion.

“Whenanat-willemployee consents, without objection, to the collection of the employee’s urine sample under the direct-observation method, the at-will employee has no cause of action for common-lawinvasion of privacy,” she wrote.

Justices Judith French, Patrick Fischer and R. Patrick DeWine joined Kennedy’s opinion.

In a dissenting opinion, JusticeMelody Stewartwrote that the employees were given the choice to submit to a highly offensive test or be terminated on the spot, which is no choice at all.

Shewrote that theemployees made the case that Sterilite coerced them to “submit to the humiliation of having their genitalia directly observed,” and they have a valid invasion of privacy claim.

Joining the dissent were Chief Justice Maureen O’ Connor and Michael P. Donnelly.